Wednesday, July 11, 2018

by Michael DorfAt no time since the appointment of Chief Justice Warren Burger in 1969 has there been a clear liberal majority of the Supreme Court. Yes, the Court has produced liberal decisions in various areas during the ensuing period, but always by picking up one or more conservative justices, often with the consequence that even liberal results were justified in conservative terms.

Justice Kennedy's majority opinion in Obergefell v. Hodges is a good example. While finding a right to same-sex marriage, it extols the virtues of marriage in a way that sounds in traditional conservatism, even to the point of insulting people who choose not to marry: "Marriage responds to the universal fear that a lonely person might call out only to find no one there." Lines like that are the price that we liberals grew accustomed to paying in order to secure liberal results based on conservative rationales.

Accordingly, in anticipation of a Democratic victory in the 2016 presidential election, some liberals began to imagine an activist liberal agenda for the Supreme Court. They began to imagine, as Mark Tushnet put it in the title of a blog post on Balkinizationin May 2016, "abandoning defensive crouch liberal constitutionalism." The election of Donald Trump, the Republicans' success in first denying to Merrick Garland and then granting to Neil Gorsuch the seat that became vacant when Justice Scalia died, and the anticipated confirmation of Brett Kavanaugh to take Anthony Kennedy's seat all mean that for the short-to-medium term, liberals will need to continue to practice defensive crouch liberal constitutionalism.
Fortunately, we have a half century of experience on which to draw. Unfortunately, the Court may turn so far to the right that there is little room for effective advocacy of liberal results using conservative arguments. That's not to say there will be only failures, however. In this post, I want to begin exploring ways in which liberals might try to defend what we value in the coming era of Supreme Court extreme conservatism. I've put "Part 1" in the title of today's post because I plan to explore defensive crouch liberal constitutionalism further in at least one future post.

I begin with a caveat and a disclaimer. The caveat is that defensive crouch liberal constitutionalism is a specialized tool. In suggesting that it may have some efficacy in the context of Supreme Court adjudication, I do not mean to propose that liberals in general should go into a defensive crouch. In the zone of politics, the path back from the wilderness may well be one of boldness rather than caution.

I focus on the making of arguments for a group of very conservative men (the SCOTUS majority) because I am a constitutional scholar, so this is the subject I know the most about. However, I do not mean to suggest that SCOTUS-focused defensive crouch liberal constitutionalism should be the main site of liberal activism in the coming decades. I view its prospects as modest, much as I view the prospects of litigation under state constitutions, which I discuss in a new Verdict column today.

So much for the caveat. Now the disclaimer: Defensive crouch liberal constitutionalism is not a trick or a ruse. It is not an effort to fool conservative justices into voting for liberal results that they actually disfavor. The justices and their clerks are much too smart for that to work. Rather, the basic idea--and it is one with which every sophisticated liberal cause lawyer now working is familiar--is to make a genuine appeal to conservative justices based on conservative values. It can sometimes work because, as Charles Fried's recent essay on the Harvard Law Review blog underscores, much of what we now code as "liberal" can also be understood to be conservative, especially when one counts adherence to precedent as manifesting Burkean conservatism (as Fried does).

Where else can liberals turn conservative arguments to our own ends? I have been, and continue to be, highly skeptical of the arguments for constitutional originalism, but I acknowledge that originalist arguments can be made for liberal no less than conservative results. That is especially true of public-meaning originalism as opposed to expected-applications originalism. Although I have argued that conservative judges and justices frequently use originalist rhetoric to cloak decisions reached on ideological grounds, I do not think that they typically do so consciously. That is, I don't think a conservative justice asks himself "I'd like to vote for the government here, so how can I concoct an originalist argument for that result?" Rather, he tries in what he regards as good faith to read the constitutional text and historical record, but because those sources are typically not decisive, he is influenced by his priors. Still, good faith at the conscious level creates an opening for originalist arguments for liberal results.

A nice example of receptivity to such arguments can be found in Justice Gorsuch's dissent in Carpenter v. United States, the Fourth Amendment case the Court decided near the end of the just-concluded Term. The majority held that in gathering cell phone tower data on a suspect from his service provider without first obtaining a warrant based on probable cause, the government violated the suspect's Fourth Amendment right against unreasonable searches. Although Justice Gorsuch dissented from that holding, his line of argument--questioning the so-called third-party doctrine--holds promise. That doctrine says that handing something over to a third party assumes the risk that the third party will give it to the government. Justice Gorsuch's Carpenter dissent thoughtfully explains why this is a problematic move.

To be sure, like Professor Colb, I find the willingness of Justice Gorsuch and some of his colleagues to abandon privacy in favor of a property rationale potentially alarming because of what it may portend in other contexts. But I also found much with which I agreed in Justice Gorsuch's Carpenter dissent. Before a liberal Supreme Court, lawyers might choose to articulate a robust view of privacy and the values it serves. That won't work with at least a few of the current justices, but based on Justice Gorsuch's Carpenter dissent, it should be possible to protect much of what deserves to be protected by appealing to his property-focused understanding of the original meaning of the Fourth Amendment.

7 comments:

I don't think Obergefell v. Hodges is one of most egregious examples -- a few pro-marriage flourishes is a lesser evil especially since he also wrote Lawrence v. Texas, which protected unmarried intimate relationships. The overall strategy is the sensible triage approach that I referenced in the past. At some point, it can be a trap, if you give them too much.

But, when you have a bad hand, what do you do? A defense attorney knows the concept well.

Great post. But you're betraying your age with this line: "I don't think a conservative justice asks himself 'I'd like to vote for the government here, so how can I concoct an originalist argument for that result?'" Back in the 90s, being a conservative judge usually meant ruling for the government in criminal cases and, on the civil side, on Establishment Clause and Due Process cases. Now, it's all about dismantling the federal government so that the states, the majority of which are red, can be free to (among other things) rape and pollute the land falsely flying the banners of "personal liberty" and "free markets" and enact personal restrictions that are designed to impose ironically-described "Christian" values. That non-substantive quibble aside, your underlying idea in that sentence is absolutely correct. The 5 conservatives' brains (I am lumping Roberts in here even though I still hold out hope that he is incrementally seeing the light) will never silently form the sentence "How can I concoct an originalist argument for [the conservative] result I favor?" (Scalia's Heller opinion is a particularly blatant example). But while they may assiduously prevent their brains from forming that sentence, that unacknowledged mechanism will dictate their every vote.

Thanks for these comments. TC: I AM old, it's true, but I meant that part of the sentence as a placeholder for whatever substantive result the justice favors in a particular case. And there remain areas where the conservatives favor government. E.g., habeas, death penalty, criminal law more generally (so long as the defendant is not charged with an offense involving firearms).

Recently, some of the conservatives have exhibited a libertarian/anti-overcriminalization bent in white-collar criminal cases, or not even so much white-collar cases as non-blue-collar cases. See Bond, Yates, and Marinello. Some of the most obvious manipulations of textualist methodology occur in these cases.

I noted that the Take Care Blog quickly picked up Mike's post to feature at its site. Shortly later, Larry Solum at his Legal Theory Blog posted on Mike's post with his "Highly Recommended" and included an excerpt. May we expect the Originalism Blog to follow up lauding Mike's post? Does this suggest some sort of common ground in the battle of liberals vs. conservatives, originalism vs. non-originalism? Might conservatives/originalists feel they have co-opted Mike? Let's see how this plays out.

Solum excerpted the 8th paragraph of Mike's post, which includes this:

"Rather, he tries in what he regards as good faith to read the constitutional text and historical record, but because those sources are typically not decisive, he is influenced by his priors. Still, good faith at the conscious level creates an opening for originalist arguments for liberal results."

Is that first sentence descriptive of originalism or non-originalism, or both? Isn't this what many originalists and non-originalist judges do? The big difference is how a judge "is influenced by his priors" as such priors are not necessarily universals. Was Justice Gorsuch's dissent in Carpenter originalist? It's not clear from the post. Isn't "good faith" what we assume most judges engage in?

Solum's "Highly Recommended" I assume is supportive of his version of originalism. I recall a recent short paper by Solum on Surprise Originalism, focusing on how originalism may lead to liberal versus conservative results. Has Solum found an ally in Mike? I wonder how other liberal constitutional scholars have reacted to Mike's post. May we expect a response from Mark Tushnet?